Senate Bill sb2386

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    Florida Senate - 2003                                  SB 2386

    By Senator Saunders





    37-1688-03                                         See HB 1477

  1                      A bill to be entitled

  2         An act relating to health care practitioners;

  3         amending s. 456.076, F.S., relating to

  4         treatment programs for impaired practitioners;

  5         providing certain rights of a licensee against

  6         whom a legally sufficient complaint involving

  7         impairment has been filed with the Department

  8         of Health; authorizing the licensee to review

  9         the complaint and evidence and to contest the

10         complaint in writing or at a hearing in person;

11         providing conditions on the limiting or

12         suspension of the licensee from practice;

13         requiring notice of such rights to licensees

14         subject to investigations initiated by the

15         department; providing an effective date.

16  

17  Be It Enacted by the Legislature of the State of Florida:

18  

19         Section 1.  Section 456.076, Florida Statutes, is

20  amended to read:

21         456.076  Treatment programs for impaired

22  practitioners.--

23         (1)  For professions that do not have impaired

24  practitioner programs provided for in their practice acts, the

25  department shall, by rule, designate approved impaired

26  practitioner programs under this section. The department may

27  adopt rules setting forth appropriate criteria for approval of

28  treatment providers. The rules may specify the manner in which

29  the consultant, retained as set forth in subsection (2), works

30  with the department in intervention, requirements for

31  evaluating and treating a professional, and requirements for

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1  the continued care and monitoring of a professional by the

 2  consultant by an approved treatment provider.

 3         (2)  The department shall retain one or more impaired

 4  practitioner consultants. A consultant shall be a licensee

 5  under the jurisdiction of the Division of Medical Quality

 6  Assurance within the department, and at least one consultant

 7  must be a practitioner or recovered practitioner licensed

 8  under chapter 458, chapter 459, or part I of chapter 464. The

 9  consultant shall assist the probable cause panel and

10  department in carrying out the responsibilities of this

11  section. This shall include working with department

12  investigators to determine whether a practitioner is, in fact,

13  impaired.

14         (3)(a)  Whenever the department receives a written or

15  oral legally sufficient complaint alleging that a licensee

16  under the jurisdiction of the Division of Medical Quality

17  Assurance within the department is impaired as a result of the

18  misuse or abuse of alcohol or drugs, or both, or due to a

19  mental or physical condition which could affect the licensee's

20  ability to practice with skill and safety, and no complaint

21  against the licensee other than impairment exists, the

22  reporting of such information shall not constitute grounds for

23  discipline pursuant to s. 456.072 or the corresponding grounds

24  for discipline within the applicable practice act if the

25  probable cause panel of the appropriate board, or the

26  department when there is no board, finds:

27         1.  The licensee has acknowledged the impairment

28  problem.

29         2.  The licensee has voluntarily enrolled in an

30  appropriate, approved treatment program.

31  

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1         3.  The licensee has voluntarily withdrawn from

 2  practice or limited the scope of practice as required by the

 3  consultant, in each case, until such time as the panel, or the

 4  department when there is no board, is satisfied the licensee

 5  has successfully completed an approved treatment program.

 6         4.  The licensee has executed releases for medical

 7  records, authorizing the release of all records of

 8  evaluations, diagnoses, and treatment of the licensee,

 9  including records of treatment for emotional or mental

10  conditions, to the consultant. The consultant shall make no

11  copies or reports of records that do not regard the issue of

12  the licensee's impairment and his or her participation in a

13  treatment program.

14         (b)  Whenever the department receives a legally

15  sufficient complaint alleging that a licensee under the

16  jurisdiction of the Division of Medical Quality Assurance

17  within the department is impaired as a result of the misuse or

18  abuse of alcohol or drugs, or both, or due to a mental or

19  physical condition which could affect the licensee's ability

20  to practice with skill and safety, the department shall

21  promptly furnish to the licensee or the licensee's attorney a

22  copy of the complaint that resulted in the initiation of the

23  investigation and a copy of all evidence upon which the

24  complaint is based. If the secretary of the department, or the

25  secretary's designee, and the chair of the respective board or

26  the chair of its probable cause panel agree in writing that

27  such notification would be detrimental to the investigation,

28  the department may withhold notification pending a finding of

29  probable cause. Once probable cause has been found to warrant

30  further action by the board, or department if there is no

31  

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1  board, the department shall notify the licensee as set forth

 2  in this paragraph.

 3         (c)(b)  If, however, the department has not received a

 4  legally sufficient complaint and the licensee agrees to

 5  withdraw from practice until such time as the consultant

 6  determines the licensee has satisfactorily completed an

 7  approved treatment program or evaluation, the probable cause

 8  panel, or the department when there is no board, shall not

 9  become involved in the licensee's case.

10         (d)(c)  Inquiries related to impairment treatment

11  programs designed to provide information to the licensee and

12  others and which do not indicate that the licensee presents a

13  danger to the public shall not constitute a complaint within

14  the meaning of s. 456.073 and shall be exempt from the

15  provisions of this subsection.

16         (e)(d)  Whenever the department receives a legally

17  sufficient complaint alleging that a licensee is impaired as

18  described in paragraph (a) and no complaint against the

19  licensee other than impairment exists, the department shall

20  forward all information in its possession regarding the

21  impaired licensee to the consultant. For the purposes of this

22  section, a suspension from hospital staff privileges due to

23  the impairment does not constitute a complaint.

24         (f)(e)  The probable cause panel, or the department

25  when there is no board, shall work directly with the

26  consultant, and all information concerning a practitioner

27  obtained from the consultant by the panel, or the department

28  when there is no board, shall remain confidential and exempt

29  from the provisions of s. 119.07(1), subject to the provisions

30  of subsections (5) and (6).

31  

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1         (g)(f)  A finding of probable cause shall not be made

 2  when as long as the panel, or the department when there is no

 3  board, is satisfied, based upon information it receives from

 4  the consultant and the department, that the licensee is

 5  progressing satisfactorily in an approved impaired

 6  practitioner program and no other complaint against the

 7  licensee exists and the licensee has:

 8         1.  Acknowledged the impairment problem.

 9         2.  Voluntarily enrolled in an appropriate, approved

10  treatment program.

11         3.  Voluntarily withdrawn from practice or limited the

12  scope of practice as required by the consultant, in each case,

13  until such time as the panel, or the department when there is

14  no board, is satisfied the licensee has successfully completed

15  an approved treatment program.

16         4.  Executed releases for medical records, authorizing

17  the release of all records of evaluations, diagnoses, and

18  treatment of the licensee, including records of treatment for

19  emotional or mental conditions, to the consultant. The

20  consultant shall make no copies or reports of records that do

21  not regard the issue of the licensee's impairment and his or

22  her participation in a treatment program.

23         (4)  In any disciplinary action for a violation other

24  than impairment in which a licensee establishes the violation

25  for which the licensee is being prosecuted was due to or

26  connected with impairment and further establishes the licensee

27  is satisfactorily progressing through or has successfully

28  completed an approved treatment program pursuant to this

29  section, such information may be considered by the board, or

30  the department when there is no board, as a mitigating factor

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1  in determining the appropriate penalty. This subsection does

 2  not limit mitigating factors the board may consider.

 3         (5)(a)  An approved treatment provider shall, upon

 4  request, disclose to the consultant all information in its

 5  possession regarding the issue of a licensee's impairment and

 6  participation in the treatment program. All information

 7  obtained by the consultant and department pursuant to this

 8  section is confidential and exempt from the provisions of s.

 9  119.07(1), subject to the provisions of this subsection and

10  subsection (6). Failure to provide such information to the

11  consultant is grounds for withdrawal of approval of such

12  program or provider.

13         (b)  If in the opinion of the consultant, after

14  consultation with the treatment provider, an impaired licensee

15  has not progressed satisfactorily in a treatment program, all

16  information regarding the issue of a licensee' s impairment

17  and participation in a treatment program in the consultant's

18  possession shall be disclosed to the department. Such

19  disclosure shall constitute a complaint pursuant to the

20  general provisions of s. 456.073. Whenever the consultant

21  concludes that impairment affects a licensee's practice and

22  constitutes an immediate, serious danger to the public health,

23  safety, or welfare, that conclusion shall be communicated to

24  the secretary of the department.

25         (6)  A consultant, licensee, or approved treatment

26  provider who makes a disclosure pursuant to this section is

27  not subject to civil liability for such disclosure or its

28  consequences. The provisions of s. 766.101 apply to any

29  officer, employee, or agent of the department or the board and

30  to any officer, employee, or agent of any entity with which

31  the department has contracted pursuant to this section.

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1         (7)  Neither the board, or department when there is no

 2  board, nor the consultant, retained as set forth in subsection

 3  (2), may limit a licensee's practice or suspend a licensee

 4  from practice while the consultant, board, or department

 5  investigates the complaint, unless one of the following

 6  conditions is met:

 7         (a)  The licensee waives his or her right under

 8  subsection (8) to contest the complaint;

 9         (b)  A probable cause panel has issued a summary

10  emergency order under subsection (9); or

11         (c)  A probable cause panel, after conducting a

12  hearing, has determined that sufficient evidence exists that

13  the licensee presents a clear and present danger to society if

14  he or she continues to practice.

15         (8)(a)  A licensee against whom a complaint is filed

16  may elect to contest the complaint by:

17         1.  Submitting a written response to the information

18  contained in the complaint within 20 days after service to the

19  licensee of the complaint; or

20         2.  Requesting a hearing within 20 days after service

21  to the licensee of the complaint at which he or she may

22  present evidence or testimony and cross-examine any person

23  offering testimony or sworn statements as part of the

24  investigation.

25         (b)  The licensee's written response and any evidence

26  presented at a hearing shall be considered by the probable

27  cause panel.

28         (9)(a)  The right to contest a complaint does not

29  prohibit the issuance of a summary emergency order if

30  necessary to protect the public. Such emergency order must be

31  delivered in writing to the licensee prior to taking effect.

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1  For the purposes of this paragraph, a facsimile copy of the

 2  order shall be sufficient. The order shall be accompanied by a

 3  copy of all evidence upon which it is based.

 4         (b)  Upon receipt of the order, the licensee shall

 5  immediately cease and desist practicing under his or her

 6  license.

 7         (c)  The licensee shall be entitled to an emergency

 8  hearing in front of the probable cause panel, within 72 hours

 9  after receipt of the order, to present rebuttal evidence and

10  cross-examine witnesses. A written decision by the panel shall

11  be issued within 24 hours after the emergency hearing ends

12  stating findings of whether the licensee poses a clear and

13  present danger to the safety of the public if not otherwise

14  suspended from practice during the pending investigation as

15  set forth in this section.

16         (10)(a)  The licensee against whom a complaint was made

17  shall, prior to a final judgment of impairment by the

18  consultant, board, or department, have the following rights:

19         1.  The right to review a copy of all accusations

20  against him or her. The department may withhold the name of

21  the complainant when applicable.

22         2.  The right to review all evidence obtained during

23  the investigation.

24         3.  The right to rebut the accusations in a hearing or

25  the right to waive his or her right to a hearing and instead

26  submit a written rebuttal.

27         4.  The right to depose under oath any person offering

28  testimony or sworn statements as part of the investigation.

29         5.  The right to record, via audiorecorder,

30  videorecorder, or a court reporter, any investigative meeting,

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    Florida Senate - 2003                                  SB 2386
    37-1688-03                                         See HB 1477




 1  interview, hearing, or counseling session in which the

 2  licensee participates.

 3         6.  The right to be represented by competent counsel

 4  during all portions of the investigation.

 5         (b)  When the department initiates an investigation

 6  concerning impairment of a licensee, the department shall

 7  provide the licensee in writing a detailed summary of all of

 8  his or her rights provided by law.

 9         Section 2.  This act shall take effect July 1, 2003.

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